State v. Stratton, 88-268

• Decision Date: 08 December 1989
• Docket Number: No. 88-268,88-268
• Citation: 132 N.H. 451,567 A.2d 986
• Parties: The STATE of New Hampshire v. James L. STRATTON.
• Court: New Hampshire Supreme Court

Page 986

567 A.2d 986

132 N.H. 451

The STATE of New Hampshire v. James L. STRATTON.

No. 88-268.

Supreme Court of New Hampshire.

Dec. 8, 1989.

Rehearing Denied Jan. 16, 1990.

John P. Arnold, Atty. Gen. (Tina Schneider, Asst. Atty. Gen., on the brief and orally), for State.

Robert J. Moses, Amherst by brief and orally, for defendant.

BROCK, Chief Justice.

The defendant, James L. Stratton, was convicted after a jury trial in Superior Court (Contas, J.) of six counts of being a felon in possession of a firearm, RSA 159:3 (Supp.1988), and one count of possession of a controlled drug, subsequent offense, RSA 318-B:2, :26 (Supp.1988). He argues on appeal that: (1) the State should not have been allowed to proceed on multiple indictments; (2) RSA 159:3 (Supp.1988), as applied in this case, is unconstitutional; (3) evidence seized pursuant to the execution of two search warrants should have been suppressed; and (4) there was insufficient evidence to support guilty verdicts. For the reasons set forth below, we affirm.

On August 19, 1987, Jamie Stratton went to the Jaffrey police station as a result of a domestic dispute with her father, the defendant. She requested a police escort out of town and informed the police that the defendant was in possession of firearms. The police discovered in their investigation that the defendant had two prior felony convictions, one in 1975 for aggravated assault, and another in 1979 for cultivating marijuana. The police solicited a written statement from Jamie Stratton, which was submitted in support of an affidavit seeking a search warrant for the defendant's residence. The search warrant was issued and, as a result of the search, the police seized seven firearms. They also observed marijuana in one of the bedrooms and in a vehicle parked at the residence. These observations led to the submission of another affidavit, the issuance of a second search warrant and the seizure of controlled drugs.

The defendant was subsequently indicted on seven counts of being a felon in possession of a firearm, RSA 159:3 (Supp.1988), and two counts of possession of a controlled drug, subsequent offense, RSA 318-B:2, :26 (Supp.1988). After considering several pretrial motions filed by the defendant, the court suppressed the admission of evidence seized in the vehicle and certain statements made by him. The court otherwise denied the defendant's motions, and he was convicted on six counts of being a felon in possession of a firearm and one count of possession of a controlled drug, subsequent offense.

The defendant raises numerous arguments on appeal.

I. Multiple Indictments

The defendant contends that the State's prosecution of six indictments for being a convicted felon in possession of a firearm was unnecessarily multiplicitous. He argues that the possession of the six firearms was a single, continuous act which should not have been fractionalized for purposes of prosecution. He asserts that the collective indictments suggested a criminal undertaking of greater significance than the offense committed and were therefore inflammatory and prejudicial. He further asserts that the indictments impermissibly subjected him to multiple sentences for the same offense. The defendant submits that the failure of the trial court to dismiss the multiple indictments and require the State to proceed on a single indictment constitutes reversible error as a matter of law.

Multiple indictments are permissible only if "proof of the elements of the crimes as charged will in actuality require a difference in evidence." State v. Bailey, 127 N.H. 811, 813, 508 A.2d 1066, 1068 (1986) (quoting Heald v. Perrin, 123 N.H. 468, 473, 464 A.2d 275, 278 (1983) (emphasis in original); see State v. Elbert, 128 N.H. 210, 512 A.2d 1114 (1986). This "difference in evidence" test has been adopted by this court as the benchmark for evaluating double jeopardy claims under the New Hampshire Constitution. State v. Bailey, 127 N.H. at 813, 508 A.2d at 1068; see N.H. CONST. pt. I, art. 16.

We do not agree with the defendant's assertion that satisfactory proof of the commission of the alleged offense as to one firearm would produce the same result as to each of the remaining firearms. In order to meet its burden of proof on each of the indictments, the State was required to produce evidence of possession of each of the six individual firearms. Applying the difference in evidence test, we conclude that the elemental evidence required for each indictment was different and that, therefore, prosecution of the six separate charges does not violate the double jeopardy clause of the New Hampshire Constitution.

In arguing that only one crime was committed, the defendant relies heavily upon Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), which held that, although a defendant transported two women over a State line for immoral purposes, the defendant was guilty of only one violation of the Mann Act. In attempting to determine whether it was the crossing of a State line or the transporting of a woman which constituted the unit of prosecution, the Court held that, where a legislative body did "not fix the punishment for [an] offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses...." Id. at 84, 75 S.Ct. at 622. Thus, our review of the defendant's double jeopardy claim under the United States Constitution requires us to consider the legislature's articulated intent. State v. Bailey, 127 N.H. at 814, 508 A.2d at 1069.

In the present case, the legislature phrased the statute, RSA 159:3 (Supp.1988), in such a manner as to make ownership, possession or control of each weapon a separate offense. The provisions of the statute are unambiguous and consistently singular; no convicted felon "shall own or have in his possession or under his control a pistol, revolver, or any other firearm." RSA 159:3 (Supp.1988). If the legislature had intended possession, regardless of the number of weapons, to be the unit of prosecution, it could have phrased the statute accordingly, e.g., "it is unlawful for felons to possess one or more pistols, revolvers or any other firearms."

Having considered the defendant's double jeopardy claim under both the State and Federal Constitutions, we hold that each firearm possessed or controlled by the defendant was the legitimate subject of a separate indictment. This is consistent with our prior ruling in State v. Bailey, 127 N.H. 811, 508 A.2d 1066, where, after having conducted a similar analysis, we affirmed two convictions for negligent homicide arising from a single incident of driving while intoxicated.

The defendant has raised the issue of the prejudicial effect created at trial by the six indictments. He contends that the trial court erred in denying his motion to compel the prosecution to elect a single indictment and to dismiss the remaining five. In support of this argument, the defendant relies upon State v. Allison, 126 N.H. 111, 489 A.2d 620 (1985), where we acknowledged that the trial court has authority to require the State to elect fewer than all the charges or to quash some of them. State v. Allison, 126 N.H. at 114, 489 A.2d at 622. However, in Allison, this authority was directed toward eliminating the threat of prejudice created when the State brings multiple charges or indictments when seeking a single conviction. Id. at 113, 489 A.2d at 621. That is not the defendant's situation, as we have already determined that each of the indictments charged a separate offense supported by different evidence.

We find no convincing reason why the State should have been required to discontinue prosecuting any of the charged offenses. We hold that the trial court did not abuse its discretion in allowing the State to proceed on all six indictments.

Because we hold that each indictment was based upon a distinguishable violation of the statute and represented a separate offense, the defendant's further claim that he was subject to multiple sentences for the same offense is without merit.

II. Constitutionality of Statute

The defendant contends that RSA 159:3 (Supp.1988), as applied in this case, is unconstitutional and offers several arguments in support of his position. However, grounds of objection not brought to the attention of the trial court will not be considered for appellate relief. State v. Johnson, 130 N.H. 578, 587, 547 A.2d 213, 218 (1988). Thus, we will limit the scope of our examination to claims preserved on the record before us.

A review of the record, in particular the motion to dismiss and supporting oral argument, reveals that the defendant failed to preserve a constitutional claim. Although the defendant made reference to overbreadth and vagueness, see State v. Pike, 128 N.H. 447, 514 A.2d 1279 (1986) (where RSA 159:3 (Supp.1985) was found to be neither overbroad nor vague), he failed to specify which constitutional provisions were allegedly being violated, and he neglected to state whether his claims were founded upon State or federal grounds. Because the defendant failed to articulate a specific constitutional provision, we will not perform, therefore, either a State or a federal constitutional analysis. State v. Dellorfano, 128 N.H. 628, 632, 517 A.2d 1163, 1166 (1986); State v. Westover, 127 N.H. 130, 131, 497 A.2d 1218, 1219 (1985).

Having found that the defendant failed to preserve a constitutional claim, we do note that the defendant's assertions of overbreadth and vagueness, both below and on appeal, are obviously meant to refer to the failure of the statute to specify the mental state necessary to commit the criminal offense.

New Hampshire law does not permit conviction of a felony absent proof that a person acted either purposefully, knowingly, recklessly or negligently, as the particular statute may require, with respect to each material element of the offense. RSA 626:2, I. However, the...